Timothy Kelly

This morning, the Senate Judiciary Committee advanced the nominations of John Bush, Kevin Newsom, Tim Kelly, and Damien Schiff to the senate floor. On one end of the spectrum, Newsom and Kelly were advanced with bipartisan support (the former with just two senators dissenting, and the latter by voice vote). On the other end, Bush and Schiff attracted unanimous opposition from Democrats.

While the outcome of the committee vote was pre-ordained after GOP skeptics announced their support for Bush and Schiff, both nominees have a narrow margin for error on the senate floor. Opponents will likely now turn their attention to lobbying moderate Republicans such as Sen. Susan Collins (R-ME). While Republicans are unlikely to run afoul of Bush’s sponsor, Senate Majority Leader Mitch McConnell (R-KY), there is a small chance some senators may choose to oppose Schiff.

Typically, when choosing federal district court judges, presidents defer to home state senators. While most senators make their selections from the pool of politically active litigators, federal prosecutors, state court judges, and federal magistrates, some turn to a different pool: their employees. Over the past few decades, several staffers on the Senate Judiciary Committee have been nominated and confirmed for the federal bench. Most notably, Justice Stephen Breyer was a staffer for then-Judiciary Chairman Edward Kennedy (D-MA) before he was tapped for the federal bench. Similarly, Sen. Strom Thurmond (R-SC) tapped multiple veterans of his staff for judgeships including Judge Dennis Shedd of the U.S. Court of Appeals for the Fourth Circuit, and Judges Henry Herlong and Terry Wooten of the U.S. District Court for the District of South Carolina. Timothy Kelly, a prominent staffer to current Judiciary Chairman Chuck Grassley (R-IA), follows that long tradition.

Background

Timothy James Kelly was born in Glen Cove, NY in 1969. After getting an A.B. from Duke University in 1991, Kelly joined the New York office of Cleary, Gottlieb, Steen & Hamilton as a legal assistant, working there for two years. In 1993, Kelly left his position as Cleary to work as a staff assistant for the U.S. House Committee on House Administration. During this position, Kelly also worked as a waiter and doorman at the popular Capitol Hill bar, Hawk ‘N’ Dove.

In 1994, Kelly left both positions to join the Georgetown University Law Center, getting his J.D. in 1997. Kelly then joined the D.C. office of Arnold & Porter, where he had previously worked as a law clerk. He worked at Arnold & Porter until 2003, other than a one-year stint as a loaned associate to the Legal Aid Society for the District of Columbia and another year clerking for Judge Ronald Buckwalter on the U.S. District Court for the Eastern District of Pennsylvania.

In 2003, Kelly was hired by Roscoe C. Howard to join the U.S. Attorney’s Office for the District of Columbia, eventually moving up to the Major Crimes section of the Criminal Division. In 2007, Kelly moved to the Department of Justice’s Criminal Division, fighting corruption in the Public Integrity section.

In 2013, Kelly was hired by Sen. Grassley to serve as Counsel and as the Republican Staff Director to the Senate Caucus on International Narcotics Control. Kelly currently serves as Grassley’s Chief Counsel for National Security and Senior Crime Counsel.

History of the Seat

The seat Kelly has been nominated for opened on May 18, 2016, with Judge Rosemary Collyer’s move to senior status. On September 6, 2016, President Obama nominated Abid Riaz Qureshi, a litigation partner at Latham & Watkins to fill the vacancy.[1] Qureshi, who would have been the first Muslim to serve as a federal judge,[2] never received a hearing on his nomination.

Legal Experience

Kelly’s varied legal career can largely be broken down into three distinct periods for analysis: the first is from 1997-2003, where he worked as an associate at Arnold & Porter. The second is from 2003-2013, where Kelly worked as a federal prosecutor and DOJ attorney. The final is from 2013-2017, where Kelly served in the legislative branch. We will focus on the first two periods.

Kelly’s time at Arnold & Porter was focused on defending pharmaceutical companies against product liability lawsuits. Kelly served on the legal team defending American Home Products Corp. (Wyeth) in tort lawsuits relating to their sale of diet drugs. The team ultimately reached a national settlement over the claims during simultaneous state court trials in Mississippi and New Jersey.[3]

As an AUSA, Kelly worked on several trial and appellate level prosecutorial matters, including misdemeanors, violent crimes, and white collar offenses. For example, Kelly successfully prosecuted a defendant for threatening his former girlfriend with a gun and assaulting her.[4] Kelly also argued three criminal appeals at the D.C. Court of Appeals.

At the Public Integrity Section, Kelly focused on the investigation and prosecution of political corruption. Kelly prosecuted Eugenio Pedraza, Special Agent-in-Charge for the Department of Homeland Security, who conspired with fellow agents to falsify investigative reports.[5] Kelly also successfully prosecuted Donna Scott for steering Department of Energy contracts to her husband.[6] Notably, Kelly successfully prosecuted the Lt. Governor of the American Samoa, and a senator in the American Samoa legislature for public corruption.[7]

In 2010, Kelly was part of the legal team prosecuting former CIA agent Jeffrey Sterling for his unauthorized disclosure of classified information to journalist James Risen. Before Sterling’s trial, the prosecution missed a discovery deadline imposed by Judge Leonie Brinkema, submitting key impeachment evidence one day late. Judge Brinkema sanctioned Kelly and the other government attorneys for the missed deadline by striking two government witnesses. The Fourth Circuit, in a 2-1 decision, overturned this sanction as an abuse of discretion, noting that the government conduct was not made in bad faith.[8] Nevertheless, the majority opinion noted that it cannot “condone the Government’s oversight.”[9]

Political Activity

Kelly, a Republican, has a relatively short record of political activity. In 2008, Kelly made multiple contributions totalling $1200 to Sen. John McCain (R-AZ) (who was then running for president).[10] In 2012, Kelly contributed $1250 to Mitt Romney’s presidential candidacy. Further, in 2014, Kelly traveled to Iowa to canvass and make phone calls for the successful candidacy of Sen. Joni Ernst (R-IA).

Overall Assessment

Kelly has an unusually well-rounded resume for a federal district court position. Having worked in private practice, as a federal prosecutor, and in the legislative process, Kelly will approach the bench with a broad array of legal experience. Furthermore, Kelly also has experience working with indigent clients, as he spent a year representing low income residents of Washington D.C. in cases involving public benefits, landlord-tenant, and family law.

It must also be noted that Kelly’s pre-law school experience is relatively rare for a federal judicial nominee. Of the nominees we have reviewed, Kelly is the first to have worked two jobs simultaneously, the first to have worked in the service industry, and the first to report having received federal financial aid.[11]Given the privileged pedigrees of many nominees, Kelly’s background is refreshingly different.

Given these factors, and the lack of any controversial stances in his background (although like most other Trump nominees, Kelly is a longtime member of the Federalist Society), Kelly should face a relatively smooth path to confirmation. If nothing else, Kelly’s time as a committee staffer should help grease the path. After all, who knows Kelly better than those who work with him every day.

[1] Press Release, White House, President Obama Nominates Abid Riaz Quereshi to Serve on the United States District Court for the District of Columbia (Sept. 06, 2016) (on file at https://obamawhitehouse.archives.gov).